Reserved on 08.05.2018 Delivered on 31.05.2018
Case :- SECOND APPEAL No. - 698 of 2001 Appellant :- Smt. Bismillah Bibi And Others Respondent :- Abdul Moid Counsel for Appellant :- H.R. Misra,Abhishek Misra Counsel for Respondent :- J.Nagar,Arvind Srivastava,Ravi Kant
Hon'ble Siddharth,J.
Heard Sri H.R. Misra and Sri Abhishek Misra, learned Counsels for the appellants and Sri Arvind Srivastava, learned Counsel for the respondent.
This is defendant’s Second Appeal against the Judgment and Decree dated 26.03.2001, passed by Sri Kripa Shankar, Ist Additional District Judge, Court No.1, Gorakhpur, in Civil Appeal No.40/1999 and the Judgment and Decree dated 31.07.1988, passed by Sri R.P. Mishra, Judge, Small Causes/Additional Civil Judge (Senior Division), Gorakhpur decreeing the Original Suit No.191 of 1988 of the plaintiff.
The plaintiff instituted an Original Suit No.191 of 1988, praying for Specific Performance of Agreement to Sell dated 07.05.1986, entered with the defendants.
Facts of the plaint are that defendant no.1, Bismillah Bibi, is owner of disputed house and she needed money for repair, etc., of the same and therefore, she entered into an agreement to sell for Rs.40,000/- with the plaintiff; that it was agreed that without permission of competent authority under the Urban Land Ceiling Act, it is not possible to get the sale deed registered; that defendant no.1 needed Rs.7,000/- immediately and therefore she took the amount and executed agreement dated 07.5.1986 which was registered and it was agreed that within 1 week of agreement to sell, the defendant no.1 shall apply before the competent authority and within 3 months of grant of permission, she will take Rs.33,000/- and execute sale deed and it was further agreed that during this period no charge over the property shall be created by defendant no.1; that it was also agreed that in case defendant no.1 again needs money prior to grant of permission, plaintiff shall pay the same and accordingly Rs.12,000/- was paid to defendant no.1 on 1.08.1986 and a document evidencing the same was executed by her; that plaintiff kept on requesting defendant no.1 to get permission from competent authority and take the remaining amount of sale consideration of Rs.21,000/- but she avoided requests and later her intention became malafide and she sent a notice in name of mother of plaintiff through her Counsel on 13.07.1987 on wrong facts stating that she has received Rs.5,000/- and stated that the agreement to sell was in favour of the mother of the plaintiff and she should get sale deed executed within a week; that the mother of the plaintiff replied to the notice of the defendant no.1 by reply dated 18.07.1986 and plaintiff also sent a registered notice dated 25.07.1987 stating that defendant no.1 should take Rs.30,000/- and execute sale deed in his favour to which defendant no.1 gave incorrect reply; that plaintiff asserted that he was always ready and willing to execute sale deed but defendant no.1 did not executed sale deed in his favour and executed sale deed dated 26.0.1987 in favour of defendant no.2 illegally; that plaintiff came to know about sale deed dated 26.10.1987 from the summons of case no.198 of 1988 brought by peon in January, 1988; that this suit was instituted by the defendant no.2 against plaintiff on false averments.
Defendant no.1 filed her written statement stating that she is an illiterate, rustic, old and pardanashin lady and her bother was suffering from cancer and therefore she needed money for his treatment; that she had entered into agreement to sell with the mother of plaintiff; that the mother of the plaintiff paid Rs.5,000/- as advance sale consideration and it was agreed that after permission is granted, defendant no.1 shall execute the sale deed within 2 months after taking balance sale consideration of Rs.35,000/- and in case mother of the plaintiff, Smt. Rokaiya Khatoon, fails to get sale deed executed, defendant no.1 shall be entitled to cancel the agreement to sell after giving registered notice and forfeit the balance sale consideration; that it was also agreed that if defendant no.1 does not gets sale deed executed within 2 months, mother of the plaintiff shall be entitled to get sale deed registered through Court; that soon after execution of agreement to sale dated 07.05.1986, defendant no.1 approached mother of plaintiff various times but she avoided execution of sale deed on the ground of paucity of funds and since defendant no.1 was in dire need of money for treatment of her brother, she executed sale deed in favour of defendant no.2 after giving the notice dated 20.04.1987, informing that in case Rukaiya Khatoon does not executes the sale deed within 1 week of receiving notice, she will take permission and execute sale deed; that mother of plaintiff returned the notice knowingly and then the defendant no.1 sent a registered notice dated 13.07.1987 to her stating that she should get sale deed registered within a week and the same was served on her on 17.07.1987; that by reply dated 18.07.1987, mother of plaintiff replied to the same stating that agreement to sell is not in her name but in the name of plaintiff and balance sale consideration is Rs.7,000/- and not Rs.5,000/- and Rs.12,000/- has been further paid to her; that by notice dated 29.08.1987, defendant no.1 denied contents of notice of mother of plaintiff; that thereafter, defendant no.1 went to the house of plaintiff and in presence of his mother and father stated that in case name of the plaintiff has been mentioned in the agreement then plaintiff should get sale deed executed after paying Rs.35,000/- and his mother assured that money would be arranged soon and same shall be executed, failing which she will execute the same to some other person; that when the plaintiff failed to get sale deed executed after paying Rs.35000/- she sold the disputed house along with the portion situated in north by the sale deed dated 26.10.1987 in favour of defendant no.2 and remaining part on the northern side to Sri Shamsuddin for an amount of Rs.40,000/- on the same day and delivered actual physical possession of the same; that defendant no.1 never received Rs.12,000/- on 1.08.1986 nor executed any document in favour of plaintiff and in case such a document has been fabricated it is not binding on her since she is an old illiterate, rustic and pardanashin lady; that the thumb impression on the document evidencing receipt of Rs.12,000/- is not of defendant no.1 and plaintiffs’ father and not the plaintiff is the tenant of the disputed house; that defendant no.1 needed money not for repair of the house but for treatment of her brother and since plaintiff did not paid the balance sale consideration and got sale deed executed in time, he is not entitled any relief in the suit. That she is not aware of suit filed by defendant no.2 and defendant no.2 is now owner in possession over disputed house and disputed agreement to sell is not binding on her.
The defendant no.2 filed her written statement denying plaint allegations and repeating most of the averments made by the defendant no.1; that she stated to have purchased disputed house and a portion in tenancy of Irshad Ahmad, area 1441 Sq. Ft. for an amount of Rs.60,000/- vide registered sale deed dated 26.10.1987 and thereafter she is owner in possession of the same; that she is not relative of defendant no.1 and was never informed about the disputed agreement to sell; that she informed plaintiff and his mother about the sale deed on the day of the sale deed; that in the Original Suit No.198 of 1988 wrong fact has been mentioned that father of the plaintiff is residing in disputed house as a licensee and therefore she has withdrawn the aforesaid suit; that since father of the plaintiff has denied her title, she is going to file a suit against him after giving notice under section 111(2) of Transfer of Property Act; that plaintiff has instituted suit only to harass defendant no.2 and therefore the suit is required to be dismissed with costs in favour of defendant no.2.
On the basis of pleading of the parties, following issues were framed by the trial court, (1). Whether the plaintiff was entitled to get the sale deed executed from the defendants for a sum of Rs.40,000/- after paying Rs.21,000/-?
(2).Whether the defendant no.1 entered into agreement to sell with the mother of the plaintiff, Smt. Rokaiya Khatoon, for a consideration of Rs.40,000/- after accepting Rs.5,000/- as advance sale consideration and plaintiff got the same executed in his name by fraud after showing payment of rs.7,000/- as balance sale consideration? If yes, then its effect?
(3).Whether the defendant no.2 is bonafide purchaser of disputed property for value?
(4).Whether disputed agreement to sell dated 1.08.1986 regarding payment of Rs.12,000/- is insufficiently stamped, unregistered and not admissible in evidence? If yes, then its effect?.
(5).Whether plaintiff has the right to institute suit? (6).Whether suit of the plaintiff is barred by time?
(7).Whether suit of the plaintiff is barred by the principles of estoppel and acquiescence?
(8).Whether there is defect of non-joinder and mis- joinder of necessary parties in suit?
(9).Whether suit is barred by Sections, 16 and 34 of the Specific Relief Act?.
(10).Whether defendants are entitled to special costs from plaintiff as per Section-35-A C.P.C.?
(11).To what relief is plaintiff entitled?.
(12).Whether plaintiff has committed default in his obligation regarding specific performance of contract? If yes, then its effect?.
(13).Whether the plaintiff is only entitled to get interest on the advance sale consideration paid regarding the agreement to sell ?
Issue nos.1, 2, 3 and 4 were decided by the learned Trial Court holding that plaintiff paid Rs.19,000/- to defendant no.1 out of Rs.40,000/- agreed as total sale consideration and plaintiff is entitled to get sale deed registered from defendant no.1 after payment of Rs.21,000/-. Regarding issue no.2, learned trial court recorded finding that defendant no.1 never entered into any agreement to sell for sale of disputed property in favour of mother of the plaintiff, Smt. Rokaiya Khatoon, for an amount of Rs.40,000/- after accepting Rs.5,000/- from her as advance sale consideration for sale of disputed property for Rs.40,000/- and plaintiff never got agreement to sell registered in his favour by fraud after paying Rs.7,000/- to the defendant no.1. Issue no.3 was decided holding that defendant no.2 is not a bonafide purchaser of disputed property for value. Issue no.4 was decided holding that receipt of Rs.12,000/- issued by defendant no.1 is a genuine document and defendant no.1 has failed to prove how it is insufficiently stamped and not admissible evidence. Issue no.5 was also decided against the defendant no.1 holding that plaintiff has right to institute suit for specific performance of contract since agreement to sell dated 07.05.1986 has been found to be valid. Issue no.6 was decided holding that suit is not barred by time and issue no.7 was not pressed by defendants and therefore decided in favour of plaintiff. Similarly issue nos.8 and 9 were decided in favour of plaintiff and against defendant no.1. Issue no.10 was also decided in favour of plaintiff holding that since the plaintiff has instituted the suit for specific performance of contract for sale, therefore defendant is not entitled to special costs against plaintiff. Issue no.11 was decided holding that in view of findings recorded, while deciding the issue nos. 1, 2, 3 and 4, suit of the plaintiff deserves to be decreed and by Judgment and Decree dated 21.07.1999, the same was decreed by learned Trial Court.
The defendants preferred a Civil Appeal No.40 of 1999 before lower appellate court, which did not framed any points of determination but decided the appeal point-wise.
The first point raised before lower appellate court by defendants was that trial court did not had jurisdiction to try the regular suit since below the signature of presiding officer, his designation was mentioned as Judge, Small Cause Court. The lower appellate court found that defendants themselves preferred appeal before learned District Judge instead of revision before District Judge under provisions of Provincial Small Cause Court’s Act. If the learned Trial Court had decided case in capacity of Judge, Small Causes Court, this appeal would not have been maintainable. It was further held that regular suits are also transferred to the Judge, Small Cause Court, where he decide cases as Civil Judge (Senior Division) and above the Judgment of learned trial court it has been mentioned. Therefore, the argument of the defendants- appellants was turned down.
The second point raised and decided by lower appellate court was that learned trial court, although framed issue nos. 12 and 13 but no findings were recorded thereon and therefore, Judgment of the trial court is vitiated. The lower appellate court recorded the finding that it fully agrees that as per Order-20, Rule-5 C.P.C., lower appellate court ought to have given its finding on issue nos. 12 and 13 but the dispute raised in issue nos. 12 and 13 have been considered in issue nos. 9 and 1 and 2 respectively. Therefore, learned trial court has decided the dispute raised in issue nos. 12 and 13 but it has omitted to state that decision regarding these issues has already been decided in issue nos.9, 1 and 2. It was further found that it is not case of the defendants that no findings regarding issue nos. 12 and 13 has been recorded by learned trial court at all and therefore there is no question of remand of the case to the trial court.
The third point raised and considered by the learned lower appellate court was whether defendant no.2, Zahida Khatoon, was bonafide purchaser for value or not. The lower appellate court concurred with findings of trial court that before getting agreement to sell dated 26.10.1987, defendant no.2 never enquired from records of the registration department regarding registration of any document regarding the suit property and therefore it was concluded that she is not bonafide purchaser of suit property.
The fourth point raised by defendants before lower appellate court was regarding validity of the agreement to sell dated 07.05.1986. It was argued that document has been obtained by fraud since agreement was entered into with his mother by plaintiff, but document was changed by fraud and converted into an agreement with plaintiff. The lower appellate court found that conclusions of the learned trial court based on evidence regarding the validity of the agreement to sell dated 07.05.1986 are justified and based on evidence on record. The defendants failed to prove any discrepancy in appreciation of evidence.
The fifth question raised before the lower appellate court was regarding question of readiness and willingness on the part of plaintiff, regarding which issue no.12 was framed by learned trial court. The lower appellate court found that various notices sent by defendant no.1 were replied by plaintiff in time and the trial court found that readiness and willingness of plaintiff was always there. The defendant no.1 took permission from competent authority and sold disputed property to the defendant no.2, when she could have sold it to plaintiff. The agreement sell was found to be registered document duly proved before court below.
Thereafter, the question, whether without permission of competent authority, sale deed can be executed in favour of plaintiff or not was considered and it was found that it can be done. Regarding issue no.13, lower appellate court found that plaintiff is entitled to decree of specific performance of contract and not to refund of sale consideration along with interest.
Aggrieved by the Judgment and Decree of affirmation passed by the lower appellate court, defendants have preferred this Second Appeal which has not been admitted and is listed for admission under Order-41, Rule-11 C.P.C.
The learned Senior Counsel for the defendants-appellants has argued that the impugned Judgments of the Court’s below have been passed ignoring the provisions of Order- XX, Rule-5 C.P.C. and yet suit of plaintiff- respondent has been decreed. It has been emphasized that this is a substantial question of law, which requires to be answered by this Court.
Much reliance has been placed on omission on the part of the trial court to record specific finding regarding the issue nos.12 and 13 framed in suit. The lower appellate court has considered this omission on the part of the trial court and has found that issue no.12, regarding the omission on the part of plaintiff to perform his part of contract, has been considered and decided by learned Trial Court, while deciding issue no.9.
Similarly well considered finding has been recorded by lower appellate court holding that issue no.13, regarding refund of the advance sale consideration to the plaintiff along with interest and it has been considered and decided, while deciding the issue nos. 1 and 2 in the suit by the trial court. This court finds that substantial compliance of Order-XX, Rule 5 has been made by both the courts below and it is not proved after perusal of the findings of the court below that mere technical omission on the part of the trial court, regarding consideration of issue nos. 12 and 13 framed in the suit, has resulted in any miscarriage of justice and therefore issue raised on behalf of defendants- appellants is not a substantial question of law.
The second argument raised on behalf of the defendants- appellants is that courts below have not considered compliance of provisions of Section-16(c) of the Specific Relief Act by the plaintiff- respondent and no issue regarding Section-20 of the Act aforesaid was framed. The trial court has recorded finding, while considering issue nos.1 and 2 that plaintiff was always ready and willing to get sale deed executed in pursuance of agreement to sell dated 07.05.1986 and has paid almost 50% of sale consideration to defendant no.1. The lower appellate court has confirmed findings of trial court. He has relied upon the Apex Court’s Judgments in the cases of P.R.Deb and Associates Vs. Sunanda Roy, (1996) 4 SCC 423, Pandit Prem Raj Vs. D.L.F. Housing and Construction Co. Ltd., (1968) 3 SCR 648, Jayakantham and others Vs.Abay Kumar, (2017) 5 SCC 178 and Judgment of this Court in the Mukhtiar Singh Vs. Dharampal Singh, 1981, ACJ 36 and has argued that provisions of Section 16(c) of Specific Relief are mandatory in nature. Plaintiff is required to plead and also prove that he has always been ready to perform his part of contract. Mere statement that he was ready to pay money and get sale deed executed would not be sufficient to meet the requirements of the Section aforesaid. He has further argued that Section-20 of the Specific Relief Act grants discretionary power to the Court to examine conduct of parties at the time of entering into agreement and circumstances under which contract was entered into. If the contract gave unfair advantage to defendants or to plaintiff, court may refuse to grant decree of Specific Performance of Contract. Merely because it is lawful decree of Specific Performance of Contract can not be granted. In case refund of money or compensation would meet the ends of justice, Court should refrain from passing a decree of specific performance of contract.
The learned counsel for the plaintiff-respondent has argued that findings regarding readiness and willingness to perform essential terms of contract is a finding of fact and can not be disturbed in Second Appeal. He has further argued that relief of Specific Performance of Contract is dependent upon equitable consideration as per Section-20 of Specific Relief Act, 1963 and a party seeking such relief must approach court with clean hands. He has further argued that discretion has been exercised by the courts below in his favour since he paid Rs.19,000/- out of total sale consideration of Rs.40,000/- agreed between the parties and had proved that he has cash-credit limit of Rs.25,000/- in the Bank and also has cash at home for getting the sale deed registered. He has relied upon the paragraph nos. 19, 20, 21, 22, 23, 24, 25 and 26 of the Judgment in the case of A. Kanthamani Vs. Nasreen Ahmed, (2017) 4 SCC 654, “19. The filing of the suit for specific performance of an agreement/contract is governed by Section 16(c) of the Specific Relief Act, 1963 read with Article 54 of the Schedule to the Limitation Act, 1963. Form Nos. 47 and 48 of Appendix‘A’ to Code of Civil Procedure, 1908 prescribe the format of the plaint for such suit.
20. The Specific Relief Act, 1877 which stood repealed by the Act of 1963 did not contain provision analogues to Section 16(c). Yet in the absence of any such provision, its requirements used to be considered mandatory in the suits for specific performance by virtue of law laid down by the Privy Counsel in a celebrated case of Ardeshir H. Mama vs Flora Sasoon, AIR 1928 PC 208. It is in this Case which went to Privy Council from Indian Courts, Their Lordships laid down the following principle:
“In a suit for specific performance on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit. Thus it was that the commencement of an action for damages being, on the principle of such cases as Clough v. London and North Western Railway Co. (1871) L.R. 7 Ex. 26 and Law v. Law (1905) 1 Ch. 140 a definite election to treat the contract as at an end, no suit for specific, performance, whatever happened to the action, could thereafter be maintained by the aggrieved plaintiff. He had by his election precluded himself even from making the averment just referred to proof of which was essential to the success of his suit. The effect upon an action for damages for breach of a previous suit for specific performance will be apparent after the question of the competence of the Court itself to award damages in such a suit has been touched upon.”
21. The Act of 1963 then made the aforesaid requirement a statutory one by enacting Section 16 (c), which reads as under: -
“16. Personal bars to relief- Specific performance of a contract cannot be enforced in favour of a person-
(a) …………………..
(b) …………………..
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation – For the purposes of clause(c)-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.”
22. Therefore, the plaint which seeks the relief of specific performance of the agreement/contract must contain all requirements of Section 16 (c) read with requirements contained in Form Nos. 47 and 48 of Appendix ‘A’ of C.P.C.
23. Article 54 of the Limitation Act provides a period of 3 year for filing a suit for specific performance of contract/agreement. A period of 3 years is required to be counted from the date fixed by the parties for the performance, or if no such date is fixed, when the plaintiff has noticed that the performance is refused. The plaint should, therefore, also have necessary pleading satisfying the requirement of Article 54.
24. The expression "readiness and willingness" has been the subject matter of interpretation in many cases even prior to its insertion in Section 16 (c) of the Specific Relief Act, 1963. While examining the question as to how and in what manner, the plaintiff is required to prove his financial readiness so as to enable him to claim specific performance of the contract/agreement, the Privy Council in a leading case which arose from the Indian Courts (Bombay) in Bank of India Limited & Ors. Vs. Jamsetji A.H. Chinoy and Chinoy and Company, AIR 1950 PC 90, approved the view taken by Chagla A.C.J., and held inter alia that " it is not necessary for the plaintiff to produce the money or vouch a concluded scheme for financing the transaction to prove his readiness and willingness.”
25. The following observations of the Privy Council are apposite:
“Their Lordships agree with this conclusion and the grounds on which it was based. It is true that the plaintiff 1 stated that he was buying for himself, that he had not sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. But in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. The question is one of fact, and in the present case the Appellate Court had ample material on which to found the view it reached. Their Lordships would only add in this connection that they fully concur with Chagla A.C.J. when he says:
"In my opinion, on the evidence already on record it was sufficient for the court to come to the conclusion ' that plaintiff 1 was ready and willing to perform his part of the contract. It was not necessary for him to ' work out actual figures and satisfy the court what specific amount a bank would have advanced on the mortgage of his property and the pledge of these shares. I do not think that any jury--if the matter was left to the jury in England--would have come to the conclusion that a man, " in the position in which the plaintiff was, was not ready and willing to pay the purchase price of the shares which he had bought from defendants 1 and 2."
For the foregoing reasons, their Lordships answer question(4) in the affirmative.” (Emphasis supplied)
26. This Court in Sukhbir Singh & Ors. Vs. Brij Pal Singh & Ors., (1997) 2 SCC 200 followed the aforesaid principle with these words:
“5. Law is not in doubt and it is not a condition that the respondents should have ready cash with them. The fact that they attended the Sub- Registrar’s office to have the sale deed executed and waited for the petitioners to attend the office of the Sub-Registrar is a positive fact to prove that they had necessary funds to pass on consideration and had with them the needed money with them for payment at the time of registration. It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till the date of the decree. It would, therefore, be clear that the courts below have appropriately exercised their discretion for granting the relief of specific performance to the respondents on sound principles of law.”
Further reliance has been placed on paragraph no. 17 of the latest Judgment in the case of Balwant Vithal Kadam Vs. Sunil Babu Rao Kadam, (2018) 2 SCC 82, “17. So far as the plea relating to readiness and willingness is concerned, it was again rightly held by the High Court to which we concur that this being a finding of fact, it could not be disturbed in second appeal and was binding on the High Court. It was more so when the first Appellate Court had recorded its finding by appreciating the entire evidence on record. We, therefore, find no ground to disagree with this finding of the High Court.”
The learned counsel for the defendants- appellants has argued that defendant no.1 was an old, illiterate, rustic and pardanashin woman and therefore burden of proof was on plaintiff to prove that he got agreement to sell executed from her after explaining terms and conditions of agreement and she agreed to execute the same on her own free will after understanding the nature of document and its legal effect.
The learned counsel for the plaintiff- respondent has pointed out that Smt. Bismillah Bibi, defendant no.1, deposed before the Court below as D.W.5 and she clearly admitted in her statement that she entered into disputed agreement to sell at the time when her brother became ill and she needed money for his treatment and she offered to sell her house to the plaintiff. Clear finding of fact has been recorded that on page-4 of her statement before learned Trial Court, defendant no.1 admitted that probably the talk of sale with Abdul Moin, plaintiff for sale of her house was for Rs.40,000/-. She admitted that agreement to sell was executed after consulting her and her brother-in-law was present, who made his signature as witness. Therefore, once the fact of execution of the disputed agreement to sell was admitted by defendant no.1, there was no requirement of proving the aforesaid fact. It is clear from Section-58 of the Evidence Act that facts admitted need not be proved.
Finally the Counsel for the defendants- appellants has argued that oral evidence of witnesses have not been discussed by learned trial court, while recording findings on different issues framed. Per contra, counsel for plaintiff-respondent has pointed out that while considering the issue nos. 1, 2 and 3, statement of most of the witnesses have been considered by learned Trial Court and no such issue was raised before lower appellate court.
The learned Counsels for the parties have been heard.
Regarding the first submission advanced on behalf of the defendants- appellants, it is found that the issue nos. 12 and 13 were framed in suit, but were not specifically decided by learned trial court. This issue was raised and considered by lower appellate court and it has considered the issue raised in this regard and has recorded its finding that issue no.12 is analogous to issue no.9 decided by trial court and issue no.13 covers findings recorded while deciding issue nos.1 and 2 by trial court. It has been stated by the lower appellate court that trial court has simply omitted to mention that issue nos. 12 and 13 have been decided while deciding issue nos. 9 and 1 and 2 respectively and no benefit of this omission can be granted to the defendants- appellants. No argument has been raised that which particular plea/issue has been left for decision in the suit and what prejudice has been caused to the rights of the defendants, thereby. Mere omission to mention number of issue, when substantially the issue has been considered and decided would not vitiate the judgment. Therefore, this is pure finding of fact and not a substantial question of law to be considered and decided in this Second Appeal.
The second argument, regarding the non consideration of requirements of Section-16(c) and 20 of Specific Relief Act have been considered by trial court. The argument of Counsel for defendant- appellant that in paragraph nos. 32, 32-A and 32-B of the written statement, defendant- appellant no.1 clearly took plea that her brother was suffering from cancer and she was in dire need of money, hence she requested plaintiff- respondent in presence of his mother and father at their residence to get sale deed executed immediately, failing which she would have no option but to execute the sale deed in favour of third party. In this regard notices, paper nos. 120-Ga, 122-Ga, 123-G, 158-Ga, 159-G and 160-G were sent to plaintiff-respondent but he did not got sale deed executed, since he was not ready and willing for the same. A perusal of paragraph no.11 of Judgment of lower appellate court shows that it has considered the notices sent by the defendant no.1 being paper no.120-Ga to mother of plaintiff and has recorded the finding that this notice was replied by Smt.Rukaiya Begum by her reply, paper no.122-Ga. Similarly notice, paper no.159-Ga was sent by defendant no.1 to Rukaiya Begum and notice, paper no.160- Ga was sent to plaintiff, but name of sender and address was not mentioned therein. The mother of plaintiff has replied to her notices, paper nos. 118-Ga and 122-Ga, which was admitted by defendant no.1 in her statement. Therefore, lower appellate has recorded categorical finding that notices were sent to mother of plaintiff with whom she had no contract of sale. The contract of sale was with plaintiff and therefore, conduct of defendant no.1 was not bonafide and on the basis of these notices, it can not said that plaintiff was not ready and willing to get sale deed executed from defendant no.1. The plea of Section-20 of the Specific Relief Act was neither pleaded in the written statement nor any issue was framed by trial court or lower appellate court in this regard. The Apex Court in the case of Ram Chandra Kulkarni (Dead) by Lrs. Vs.Dinkar, 1993 Suppl (3) SCC 459, paragraph no.5 has held that where defendant has not taken such a plea, High Court can not set aside decree of Specific Performance of Agreement to Sell. Similar ratio has been laid down in A. Maria Angelena (dead) and others vs. A.G. Balkis Bee, 2002(9) SCC 597, paragraph no.4,
“4. Learned counsel for the appellants relied upon a decision in the case of Damacherla Anjaneyulu v. Damcherla Venkata Seshaiah 1987 Supp SCC 75 in support of his submission. In the said case, it was found that the decree for specific performance would put the defendant to a great hardship and, therefore, in lieu of the decree for specific performance, the Court granted a sum of Rs 1,25,000 to the vendee. This case appears to be decided under article 142 of the constitution of india as no principle of law has been laid down therein and, therefore, has no application in the present case. In any event of the matter, no hardship as now stated was pleaded in the written statement. Further, no issue was framed that the plaintiff-respondent could be compensated in terms of money in lieu of the decree for specific performance. In the absence of such a plea and issue, we are not inclined to entertain the argument of the learned counsel for the appellants raised for the first time. We find that the plaintiff was always
and is ready and willing to perform his part of the contract and a concurrent finding of fact to that effect has been recorded by the court below and there is no reason to interfere with the said finding.”
The lower appellate court has also considered the findings of trial court in this regard and in view of the ratio of the Apex Court in the case of A. Kanthamani (supra) and Balwant Vithal Kadam (supra) the findings of the issues are pure findings of fact and do not require interference in the Second Appeal by the High Court.
The third argument, regarding the burden of proof in case of pardanashin woman also does not constitute any substantial question of law. Smt. Bismillah Bibi, defendant no.1, deposed before Court below as D.W.5 and she clearly admitted in her statement that she entered into disputed agreement to sell at the time when her brother became ill and she needed money for his treatment and she offered to sell her house to the plaintiff. Clear finding of fact has been recorded that on page-4 of her statement before the learned Trial Court. Defendant no.1 admitted that probably talks of sale with Abdul Moin, plaintiff, for sale of her house was for Rs.40,000/-. She admitted that the agreement to sell was executed after consulting her and her brother-in-law was present, who made his signature as witness. Therefore, once the fact of execution of disputed agreement to sell was admitted by defendant no.1, there was no requirement of proving the aforesaid fact. It is clear from Section-58 of the Evidence Act that facts admitted need not be proved. Hence this argument was does not raises any substantial question of law.
Finally, argument regarding non consideration of oral evidence of the parties is also not borne from the Judgment of Trial Court and the Judgment of the lower appellate court. Reference to statements of witnesses are there as and where required. Moreover, this issue was not raised at all before the lower appellate court and has been raised for the first time before the court and it does not merit consideration.
In view of the above consideration, no substantial question of law arises for decision in the Second Appeal and therefore, it deserves to be dismissed under Order- 41, Rule-11 C.P.C.
This Second Appeal is dismissed.
Order Date :- 31.05.2018 Ruchi Agrahari